In Cerame v. Slack, decided today by the Second Circuit, Chief Judge Debra Ann Livingston, joined by Judges Walker and Sullivan, concluded that plaintiffs had standing to challenge Connecticut bar rule 8.4(7), which provides,
It is professional misconduct for a lawyer to … (7) Engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, color, ancestry, sex, pregnancy, religion, national origin, ethnicity, disability, status as a veteran, age, sexual orientation, gender identity, gender expression or marital status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation, or to provide advice, assistance or advocacy consistent with these Rules.
The court elaborated on the scope of the ban:
Commentary to Rule 8.4 defines discrimination to "include[ ] harmful verbal or physical conduct directed at an individual or individuals that manifests bias or prejudice on the basis of one or more of the protected categories." Harassment is defined to "include[ ] severe or pervasive derogatory or demeaning verbal or physical conduct."
In addition, while previous Commentary to Rule 8.4 specified that attorneys were subject to discipline for misconduct "in the course of representing a client," the current Commentary to Rule 8.4 broadly defines "conduct related to the practice of law," as used in Rule 8.4(7)'s text, as follows:
Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or professional activities or events in connection with the practice of law.
The complaint alleges that "Rule 8.4(7)'s new focus on events unrelated to client representation is a major purpose of the amendment." {The allegation references testimony by the CBA's president before the Rules Committee regarding a CBA survey which showed members of Connecticut's bar complaining of allegedly harassing conduct by attorneys at "professional events, e.g., bar association events, CLE, professional networking."}
Finally, sanctions are not limited to those attorneys who "knowingly" engage in the prohibited verbal or physical conduct but extend to those attorneys who "reasonably should know" that their conduct is prohibited. The Commentary provides, however, that "[a] lawyer's conduct does not violate paragraph (7) when the conduct in question is protected under the first amendment to the United States Constitution or article first, § 4 of the Connecticut constitution."
The court then concluded that the lawyers had adequately alleged that the law chilled their potentially constitutionally protected speech ("Appellants" refers here to the lawyers challenging the law, and "Appellees" to the state-bar-related defendants):
First, Appellants' desire to engage in speech on controversial issues in legal blogs and articles, at CLE events, and in press releases, public speeches, and other contexts clearly involves a course of conduct affected with a First Amendment interest…. Appellants' complaint adequately alleges that Cerame and Moynahan would seek, but for Rule 8.4(7), to engage in speech of the sort that Paragraph 58 describes.
{Moynahan and Cerame …. allege in Paragraph 58 of the complaint that "[t]here are numerous examples of speech" fully protected by the First Amendment that members of the Connecticut bar will be reluctant to engage in, given the fear of a misconduct complaint. These include using "the pronoun associated with a transgender individual's biological sex when addressing that individual"; using the term "'gender preference' rather than 'gender orientation'"; "[t]elling jokes to other attorneys that the speaker does not intend to be taken seriously but that some members of a protected group deem offensive"; espousing the theories of "sociologist Charles Murray that socioeconomic disparities among racial groups are to a large degree attributable to heritable group differences in cognition and adverse social behaviors, not systemic racial discrimination"; and publishing cartoons that "satiri[ze] or mock[ ]" "a religious deity." }
To be clear, Appellants do not "intend[ ] to harass or discriminate against any members of the groups protected by Rule 8.4(7)." But this "lack of intent," they allege, "provides no protection for their speech," and they "feel forced to speak less openly" on topics similar to those about which they are already outspoken "to reduce the likelihood that [a misconduct complaint] will be filed." This is more than enough at the pleading stage to assert their desire to engage in a course of conduct affected with a constitutional interest.
Second, … Plaintiffs are not required to show that they will win on the merits of their constitutional claims to establish Article III standing. At this stage, plaintiffs' "intended conduct need only be arguably proscribed by the challenged statute, not necessarily in fact proscribed." Moreover, "a plaintiff's interpretation" of a prohibition and its application to him need not be "the best interpretation," only "reasonable enough" for it to convey standing. Rule 8.4(7) makes it professional misconduct, inter alia, to engage in "harmful verbal … conduct directed at an individual or individuals that manifests bias or prejudice on the basis of one or more of the protected categories." While it is indeed possible that none of the speech specified in the complaint is actually proscribed by Rule 8.4(7), Appellants' contrary conclusion that such speech could be deemed professional misconduct is both "arguable" and "reasonable."
For example, it is certainly arguable that members of the SGC could conclude that referring to transgender individuals by pronouns other than those with which they wish to be addressed is harmful, a manifestation of bias on the basis of gender identity, and directed at individuals so referenced. Indeed, at oral argument, Appellees' counsel were unable to answer definitively whether this example was prohibited under Rule 8.4(7). To be clear, we do not defer to the Appellees' interpretation of the Rule to determine if conduct is arguably proscribed. But the fact that Appellees' counsel was unable to give a considered opinion as to the new Rule's application to the speech referenced in the complaint is illustrative of the reasonableness of Appellants' legitimate fear of discipline in the event that they engaged in such speech in the future.
Appellees argue that the commentary to Rule 8.4, providing that an attorney "does not violate paragraph (7) when the conduct in question is protected under the first amendment to the United States constitution" "unambiguously shows that the Rule does not proscribe protected speech." … [But b]oth the Supreme Court and this Court have made clear that in the type of pre-enforcement challenge presented here, the question is whether the contemplated conduct is "'arguably proscribed' by the challenged [provision], not whether the intended conduct is in fact proscribed." … Here, a good faith belief that the speech at issue is protected by the First Amendment is not a defense to a sanctions action brought pursuant to Connecticut's new rule. And Rule 8.4(7) is not limited to harassment or discrimination that is knowing or intentional; to the contrary, it has potential application to attorneys who may inadvertently offend their audience. Cf. Greenberg v. Lehocky (3d Cir. 2023) (finding that an attorney lacked standing to challenge a similar rule of professional conduct in Pennsylvania because that rule did not extend to inadvertent conduct and required an attorney to act "knowingly").
{Greenberg is distinguishable from the instant case due to distinctions between Pennsylvania's Rule of Professional Conduct 8.4(g), also patterned on the ABA's Model Rule 8.4(g), and Connecticut's significantly broader rule, as well as interpretative guidance provided in Pennsylvania but not here. There, the Third Circuit determined that the plaintiff lacked standing to challenge Pennsylvania's rule because the plaintiff's planned speech was not arguably prohibited. The Third Circuit reached this conclusion in part because Pennsylvania's rule, unlike Connecticut's, "prohibits only harassment and discrimination that is knowing or intentional." In addition, the Chief Disciplinary Counsel there had reviewed the plaintiff's "planned presentations, speeches, and writings and stated they do not violate the Rule" and the Office of Disciplinary Counsel had interpreted Pennsylvania's rule not to prohibit "general discussion of case law or 'controversial' positions or ideas." }
Although the First Amendment carve-out may make it more likely that the SGC will conclude that some speech that would otherwise fall within the text of Rule 8.4(7) is not in fact proscribed, the carve-out is not enough, on its own, to render Appellants' fear of a misconduct complaint and its professional repercussions "imaginary or wholly speculative" for Article III purposes. See also Gulf Oil Co. v. Bernard (1981) (noting that an exception to a speech restriction that permits constitutional speech "d[oes] little to narrow the scope of the limitation on speech" because speakers can still be required to defend the constitutionality of their speech and are at risk of "after-the-fact" liability). The question of what speech is protected by the First Amendment often requires careful consideration of its content and surrounding circumstances, especially when considering the speech of lawyers outside the familiar context of the courtroom, where "[o]bedience to ethical precepts may require abstention from what in other circumstances might be constitutionally protected speech." Simply put, a blanket First Amendment carve-out is not enough to negate Appellants' reasonable fear that their proposed speech may be proscribed by Rule 8.4(7).
Third, … Appellants have demonstrated that they face a credible threat of enforcement….
Appellees … argue that Appellants' fear of enforcement is not credible because Appellees have neither sanctioned anyone for similar conduct under the prior version of Rule 8.4(7), nor sanctioned anyone since Rule 8.4(7) became operative. We disagree. The lack of sanctions is unpersuasive because Rule 8.4(7) is a new rule and, at the time Appellants filed this pre-enforcement challenge, there was no history of non-enforcement from which we could infer a lack of future intent to enforce it. As we have said before, evidence of past enforcement, though relevant, is not "necessary to make out an injury in fact."
Further, the history leading up to the enactment of Rule 8.4(7) reflects an intent to go beyond the precursor to Rule 8.4(7) to reach conduct, for instance, not only in the course of representing a client, but also in the context of "participating in bar association, business or professional activities or events in connection with the practice of law." Accordingly, the lack of an earlier enforcement history does not evince a lack of intent to enforce the new rule. And nothing in the limited history of Rule 8.4(7) overcomes the general presumption that the government will enforce the laws it enacts.
{That the SGC has not sanctioned anyone while it is actively litigating the constitutionality and contours of Rule 8.4(7) is also unpersuasive because it may be making strategic choices in the context of litigation to which it is not bound after the litigation ends.}
Appellees once again point to the First Amendment carve-out, arguing that because they have "disavowed both the authority and the intent to enforce against protected speech," there is no credible threat of enforcement against Appellants. But the First Amendment carve-out is not a disavowal of enforcement against Appellants or their contemplated speech. While Appellees contend that the carve-out shows that those involved in the grievance procedures will be cognizant of First Amendment principles when enforcing Rule 8.4(7), its uncertain reach—as evidenced by Appellees' inability to answer whether specific examples of speech constitute professional misconduct under Rule 8.4(7)—makes differing interpretations of Rule 8.4(7)'s scope likely. And we are not permitted to place Appellants' First Amendment rights "at the sufferance" of the SGC.
The threat of enforcement resulting in discipline, moreover, is itself both credible and substantial. As already noted, Appellees have not disavowed enforcement of the new rule. And … the "universe of potential complainants is not restricted to state officials who are constrained by explicit guidelines or ethical obligations," but extends to any person. Moreover, the complaint alleges that members of the Connecticut bar have made clear that they view Rule 8.4(7) as prohibiting speech like that contemplated by Appellants and that they intend to pursue disciplinary action against attorneys who engage in such speech. And most significantly, Appellees point to no guidelines for the State Bar Counsel and the SGC, beyond the general First Amendment carve-out, that might inform the exercise of judgment in the application of Rule 8.4(7). In such circumstances, we cannot conclude that Appellants' fear of enforcement is "imaginary or wholly speculative."
Richard Samp and Peggy Little of the New Civil Liberties Alliance represent plaintiffs.
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